New French Decree Strengthens Protection Of Confidential Documents

The Background: French Decree No. 2018-1126, which is intended to enhance the protection of documents containing confidential information, became effective following publication in the Official Journal.

The Result: The Decree introduces Articles R. 153-1 to R. 153-9 into the Commercial Code, codifying procedures related to requests for document discovery in certain courts.

Looking Ahead: These developments constitute a significant step forward in the protection of trade secrets in France.

Based on Article 145 of the French Code of Civil Procedure, a judge may order discovery prior to a trial, on request, or in summary judgment if there is a legitimate reason to believe that the withholding or establishing of certain facts could affect the outcome of a dispute.

Since a request for evidence could undermine the confidentiality of critical information, some courts chose to limit access to the seized documents. Applicants were then required to initiate an interlocutory procedure in order to obtain, after an adversarial examination, the requested documents. As a result, the withdrawal and subsequent request for access to the sequestered documents became the subject of two separate proceedingsa judge was required to rule on the first before the second could be examined.

The disclosure process was characterized by numerous uncertainties, in particular related to the methods of classification (certain courts passed on this responsibility to outside experts) and to the participation of applicants (and sometimes even their counsel) during the classification, which case law generally appears to have denied.

The Decree grants a judge the authority to order ex officio the sequestration of seized documents in order to ensure the confidentiality of trade secrets, although this is provisional. The sequestration measure may be waived and the documents provided to the applicant if the judge does not receive an application for amendment or withdrawal of his order within one month of its being served (R. 153-1). A single judge will rule on the request for withdrawal and disclosure of documents.